Board of Mgrs. of Strivers Gardens Condominium v Moore

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Board of Mgrs. of Strivers Gardens Condominium v Moore 2019 NY Slip Op 33537(U) December 3, 2019 Supreme Court, New York County Docket Number: 161402/2013 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 12/03/2019 03:45 PM NYSCEF DOC. NO. 203 INDEX NO. 161402/2013 RECEIVED NYSCEF: 12/03/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA A. JAMES IAS MOTION 59EFM Justice ---------------------------------------------------------------------------------X THE BOARD OF MANAGERS OF STRIVERS GARDENS CONDOMINIUM, ON BEHALF OF ITS UNIT OWNERS, INDEX NO. 161402/2013 MOTION DATE 12/03/2019 MOTION SEQ. NO. Plaintiff, 009 010 -vWANDA MOORE, BAC HOME LOAN SERVICING, LP, CRIMINAL COURT OF THE CITY OF NEW YORK, and JOHN DOE, DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 009) 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 174, 175, 176 MISCELLANEOUS were read on this motion to/for The following e-filed documents, listed by NYSCEF document number (Motion 010) 168, 169, 170, 171, 172, 173, 177, 178, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200 were read on this motion to/for AMEND/MODIFY DECISION/ORDER/JUDGMENT . ORDER Upon the foregoing documents, it is ORDERED that the motion of non-party assignee 21647, LLC to amend the Judgment of Foreclosure and Sale, nunc pro tune, to reflect that the sale of the subject premises is not subject to the mortgage lien of defendant BAC Home Loan Servicing f/k/a Countrywide Home Loan Servicing LP pursuant to RPAPL CPLR § § 1353 and 5019(Motion Sequence Number 010) is DENIED; and it is further 161402/2013 BRO OF MGRS OF STRIVERS vs. MOORE, WANDA D Motion No. 009 010 Page 1 of4 Please purchase PDFStamp Command Line product to remove this watermark. 1 of 4 http://www.verypdf.com Demo (http://www.verypdf.com) [*FILED: 2] NEW YORK COUNTY CLERK 12/03/2019 03:45 PM NYSCEF DOC. NO. 203 INDEX NO. 161402/2013 RECEIVED NYSCEF: 12/03/2019 ORDERED that the motion of plaintiff for an order extending the closing beyond the 90 day period in the Judgment of Foreclosure and Sale (Motion Sequence Number 009) is DENIED; and it is further ORDERED that the cross motion of defendant Wanda Moore to vacate the Judgment of Foreclosure and Sale (Motion Sequence Number 009) is GRANTED; and it is further ORDERED that the Stipulation of Discontinuance with Prejudice dated May 15, 2014 between plaintiff and defendant BAC Home Loan Servicing LP f/k/a Countrywide Home Loan Servicing is VACATED, nunc pro tune, and of NO FORCE and EFFECT, as it is nullity; and it is further ORDERED that the Judgment of Foreclosure and Sale entered on January 17, 2017 is VACATED; and it is further ORDERED that defendant Moore shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further 161402/2013 BRO OF MGRS OF STRIVERS vs. MOORE, WANDA D Motion No. 009 010 Page 2 of 4 Please purchase PDFStamp Command Line product to remove this watermark. 2 of 4 http://www.verypdf.com Demo (http://www.verypdf.com) [*FILED: 3] NEW YORK COUNTY CLERK 12/03/2019 03:45 PM NYSCEF DOC. NO. 203 INDEX NO. 161402/2013 RECEIVED NYSCEF: 12/03/2019 ORDERED that this action against Bank of America, N.A., sued as BAC Home Loan Servicing LP f/k/a Countrywide Home Loan Servicing, LP is reinstated against such defendant; and it is further ORDERED that the parties are directed to appear for a preliminary conference in IAS Part 59, 60 Centre Street, Room 331, on December 3, 2019, 2:30 PM. DECISION By Stipulation dated May 15, 2014, plaintiff and defendant BAC Home Loan Servicing LP f/k/a Countrywide Home Loan Servicing LP ("bank") purported to discontinue the herein action to foreclose on a condominium unit common charge lien brought by plaintiff condominium board against defendant bank, with prejudice, without ever presenting, let alone securing the agreement of defendant Moore, the unit owner, as required pursuant to CPLR 3217 (a) (2). Such mandatory provision was violated, and therefore the Stipulation is a complete nullity. See C.W. Brown, Inc. v HCE, Inc., 8 AD3d 520 (2d Dept. 2004). Neither counsel for plaintiff nor counsel for defendant bank deigned to move for such relief as required under CPLR 3217(b), which failure, in this court's opinion, constituted totally improper practice. Such lack of transparency caused extreme prejudice to the defendant Moore, who, inter alia, suffered in having to appear and defend herself in the action at 161402/2013 BRO OF MGRS OF STRIVERS vs. MOORE, WANDA D Motion No. 009 010 Page 3 of 4 Please purchase PDFStamp Command Line product to remove this watermark. 3 of 4 http://www.verypdf.com Demo (http://www.verypdf.com) [*FILED: 4] NEW YORK COUNTY CLERK 12/03/2019 03:45 PM NYSCEF DOC. NO. 203 INDEX NO. 161402/2013 RECEIVED NYSCEF: 12/03/2019 bar as well as in a separate related action wherein defendant bank sought to foreclose on a mortgage lien on the same condominium unit in BAC Home Loan Servicing, LP v Moore (New York County Supreme Court Index No. 110848/2009), before a different judge, and which latter action is currently on the trial calendar. The Judgment of Foreclosure and Sale entered on January 17, 2017 in this action is likewise a nullity, as defendant Moore never had the opportunity to raise the matter of the purported mortgage lien held by defendant bank in this action, having been deprived of her right to contest the discontinuance of this action against such bank. The Clerk of the Court has reassigned the foregoing mortgage foreclosure action, which is completely related to this herein action, to the undersigned, which will be tried jointly with the action at bar. 12/3/2019 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED ::~::E:RDER D DENIED INCLUDES TRANSFER/REASSIGN 161402/2013 BRO OF MGRS OF STRIVERS vs. MOORE, WANDA D Motion No. 009 010 D OTHER D REFERENCE Page4 of 4 Please purchase PDFStamp Command Line product to remove this watermark. 4 of 4 http://www.verypdf.com Demo (http://www.verypdf.com)

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